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Whether they like it or not, lawyers interact with data every day. While there is no need for them to seek advanced degrees in data science or statistics, it is becoming increasingly difficult for them to provide adequate representation without being skilled in the uses of data. Having some awareness of the importance of data and occasionally using it to strategic advantage in a legal matter or in a legal business context — what I would call basic data literacy — will soon be insufficient. They will need to become data competent to stay competitive and relevant.

Why Is Data Competency Important?

In nearly every other industry and profession — finance and banking, insurance, retail and healthcare, to name just a few — the data-driven mindset has taken root and yielded abundant fruit. Law firms need only look at their own clients to confirm this. Many companies routinely analyze and manipulate data across multiple business functions to quantify variables like risk, the likelihood of certain outcomes, the predicted cost of complex projects, and the efficiency of specific practices and teams. Why not law firms?

In fact, that's a question law firm clients are asking with increasing frequency. When clients are facing a lawsuit or considering legal action, they know they need to manage risk in an objective and defensible way. More GCs are demanding data-based insights that can substantiate strategic direction on pending legal matters. They are even looking for data in pitch decks and RFPs, because they know data-driven lawyering will give them a clearer and more substantive understanding of their options as they pursue the details of specific matters. By and large, however, law firms are falling short. When you read the comments of exceptional lawyers who have been recognized for creative, data-driven work, a common theme is how corporate clients are frustrated with outside counsel's failure to adapt to today's data-centric business environment.

To be fair, some firms have also begun to recognize the importance of data, investing in technologies such as legal analytics, machine learning and natural language processing to deepen their insight into litigation data and guide legal strategy, and to help them understand and optimize internal processes and workflows. These are good steps. But data competency is not just about purchasing tools, and even firms that invest in advanced technology are not always successful in getting their lawyers to use it to its fullest potential, if at all. The degree to which firms and lawyers are comfortable and skilled with data still varies tremendously from one organization to another, and even within individual firms.

People within the firm who are using the technology and have attained real expertise are the key to bringing the rest of the profession up to speed. These people are often power users, who have integrated data and analytics into their daily practice, or law librarians or knowledge management professionals.

What Does Data Competence Look Like?

Data competent lawyers have the comfort and skill level to find and manipulate the data they need to make key decisions in very specific legal use cases. For example, they can analyze litigation data to determine the best venue in which to litigate a case. They can look at case timing data in cases similar to their own to more accurately project timelines and costs. They can take a call from a client and immediately pull up the track record of opposing counsel in relevant cases to assess the likelihood of a favorable outcome. They can look at practice area trends and make key decisions about where to allocate resources.

Data competency is all about using legal data on a daily basis to address everyday problems and achieve desired legal and business outcomes. It means being able to accurately quantify key variables like litigation risk, likely case outcomes, potential settlement amounts, the tendencies of specific judges, success rates for patent application and prosecution strategies, or even the validity of a key allegation made by an opponent in a legal matter. A few years ago, lawyers had to rely on "hunches" or anecdotal information to make strategic decisions based on questions like these. An experienced lawyer's instincts are still valuable as hypotheses, but now we are equipped to test those hypotheses and arrive at much more definitive answers to difficult questions.

Promoting Competency Through Formal and Informal Training

A persistent barrier to data literacy and data competency is the legal profession itself, where lawyers constantly find themselves in triage mode or putting out fires. They lack time to learn new skills, and they are wary of cutting into billable hours to engage in activities that they aren't certain will help them do their jobs better. Moving the profession from data literacy to data competency will require a cultural shift comparable to transformations we have seen in other industries.

More firms need to show leadership and commitment in this area. To get good results, any data-focused initiative will have to come from the top. The library or knowledge management divisions of a firm may already offer educational opportunities to those who are interested, but if leadership isn't really behind such programs, they are unlikely to make a significant difference.

Scheduling an event is often the only way to get lawyers to sit down, listen and engage. There are a few forward-looking firms that have developed internal programs to expose their associates and partners to data-focused tools and litigation strategies on a regular basis. Such programs can take the form of a casual lunchtime "Tech Tuesday" presentation or perhaps a more extensive formal "bootcamp" run by the firm's librarians, data-savvy lawyers or both. Another promising long-term strategy is to arrange data- and tool-based training for summer interns, who are primed to learn and likely to be more open to acquiring new technological competencies to distinguish themselves and jumpstart their careers. These interns are likely to be the firm's "data evangelists" of the future. But the goal of any program should be to engage the interest of practitioners, get their hands on the keyboard, and demonstrate with real-life examples that data-focused tools and techniques can help them practice law more effectively and efficiently.

 

Josh Becker is LexisNexis Head of Legal Analytics and Chairman, Lex Machina. He is a long-time recognized thought leader on leveraging technology to improve the practice of law. Previously, Josh served as Lex Machina CEO for seven years leading strategy and operations. During his tenure, Lex Machina was acquired by LexisNexis.